KD 17 May 2016

Cruelty by wife

One of my cousins (male) is being utterly illtreated by his wife for last 2 years. They have married 3 years back. Both husband & wife work & stay in two different cities (200 km away) since day-1 of marriage. They have a kid of 1 year. My cousin used to visit his wife every week where she stays with her brother & mother. She continuously illtreats him in front of her mother & brother. She even does not allow him to spend more time with his own kid also. Now she has got a new job & plans to shift to a location close to her maternal home which is 1800 km away from his husbands location of job. When the husband opposed to this she & her brother vehemently countered. The husband exchanged some slangs with her in anger.

When he visited the next time to his wife, he apologized & tried to reconcile with her but the wife did not pay any heed to him & shockingly her brother physically attacked the husband & humiliated. Since then the husband has stopped going to that place (for last 2-3 months).

Now my cousin (the husband in this case) wants a divorce under cruelty ground. He has the following querries.

1. Can he ask for custody of the 1 year old baby?

2. Can his wife ask for maintenance even if she is a well paid executive (-Senior Manager in an MNC) ?

3. Can she ask for share in his & his ancestral property that he acquired before marriage?

4. If the court gives joint custody to the baby & baby stays with its mother then - how much expense he has to share?

5. How much time it takes in general to complete the divorce - if it is consentual?

6. Is it mandatory that they have to stay away for atleast 1-2 years before filing the divorce petition?

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5 Replies

Vijay Raj Mahajan (Advocate) 17 May 2016

1. Can ask but will not get. Will be allowed visitation only. 2. Can ask but will not get for herself but for child she can be granted from the father. 3. Can ask but will not get any relief from the court. 4. Depends on the child's requirement. 5. For divorce by mutual consent at least 6 months but for contested divorce no time frame. 6. No can file anytime. Marriage is 3 years old not bar for filling divorce anytime now.

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adv. rajeev ( rajoo ) (practicing advocate) 17 May 2016

He can file a divorce case on the ground of cruelty but burden lies on him to prove it. Wife cannot claim any maintenance because she is working lady, if she asked you have to prove she is getting handsome salary.

You can ask for the child custody, but normally court won't entertain it because mother is good care taker, at the most court can give him visitation rights.

She cannot claim her share in the property because during the life of husband she cannot claim, but she can claim thru., the child.

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Sudhir Kumar, Advocate (Advocate) 17 May 2016

Try peaceful solution

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KD 17 May 2016

Thanks a lot for the information. We are waiting to see if things could improve. Filing a divorce would be the last resort to retain the visitation custody of the baby. A few more querries.

On grant of visitation rights by court, can the father ask for the following?

a). The mother may stay at an accessible location where the father can visit once in a week.

b). Can the father have a say on the education / healthcare etc of the baby?

c). Ask the visitation rights for his parents (grand parents of the baby?)

d). After how many years of age does the kid be allowed to spend more time with his father- Say visiting his native place with father OR any long outing with father etc? Or separate order from the court is required for this?